Conscience Freedoms Denied by Liberal Courts

One involves the bottomless pockets of the atheist Michael Newdow, who most recently joined several plaintiffs in a lawsuit against the U.S. Treasury Department demanding the words “In God We Trust” be scrubbed from U.S. currency. Newdow advocates what Richard John Neuhaus called the “naked public square,” a public life stripped of all references to God or to the duties we owe to Him. The “Constitution” is invoked, that document granting jurists ultimate authority over the local customs of citizens a thousand miles away. The courts have been as wary of religion approaching the minds of impressionable children as an epidemiologist is wary of meningitis. A child in a public school must never have to endure even the vicinity of any common, publicly acknowledged prayer, lest it wound him in his feelings, and lest it undermine a parent’s conscientious objection to giving homage to the Guarantor of conscience.

That supersensitive concern must puzzle a young Christian couple in New Mexico, the Hugenins. They run a small photography business, and they were sued, not for doing anything, but for begging to decline from doing something. They cannot in good conscience take pictures for a celebration of sodomitical relations. They are not saying, like Melville’s Bartleby, that they should prefer not to. They are saying that they must not. They have no choice in the matter—unless they wish to betray all that they hold most dearly. And, with stunning insouciance and callousness, the New Mexico Supreme Court has ruled that such betrayal is the price you must pay to live in a civil society.

Nothing could be further from the truth. It’s like saying that one must cease to be fully human in order to attain to the human flourishing which civil society is for. That is a contradiction in terms. That the court does not see it as such suggests that it has not considered the nature of religious faith, the claims that the worship of God makes, and the centrality of conscience to the human person.

Think of the violence the state wishes to wreak upon that young couple. Their involvement in the celebration would not be incidental. Unlike people attending a graduation ceremony, they would not be merely present while others did something ordinary, something that even the atheist would not call indecent. If you’re going to take successful photos of the groom and groom, you have to enter into the spirit of the occasion. You have to ask them to kiss one another. You have to photograph their embraces. You have to be a participant.

Alter the terms of the situation. Suppose the Hugenins were asked to shoot photographs at a party thrown to celebrate a friend’s divorce. Would they be required by law to participate in that? Suppose it was a celebration of a porn magazine’s jubilee. Must they assist in that, if the editor comes a-calling? Why should they be compelled to stifle their consciences and be less than human, just to run a business? Aren’t business and politics meant to serve the flourishing of human persons, and not the other way around? Why should running a business expose you to what Jefferson called tyranny upon the mind of man?

Conscience-forcers will argue that the Hugenins are like a racist restaurateur who turns away a black customer. I wonder whether Americans have lost the capacity for rational thought, so feeble are their powers of analogy. First, the restaurateur is in the position of Bartleby, not in the position of Daniel, who refused to do homage to the statue of the emperor. He would prefer not to serve the black customer; but his objections are not moral. It is not his conscience speaking, but his self-will. He does not say that it is wrong for a person to eat. If he believed that, he’d not have gone into the business in the first place. He’d be six feet underground. He simply does not want to serve the man his dinner. But that won’t do, not for someone whose business is to serve the bodily needs we all share in common. It is wrong not to feed the hungry, and people do not digest food through the skin! But the Hugenins most certainly believe that two men or two women celebrating a mimic-marriage are engaging in behavior that is gravely wrong. It’s the behavior and not the persons that they cannot in conscience serve. If one of them were to ask them to photograph her brother’s graduation, there would be no problem.

Second, the restaurateur is not being asked to cooperate in a deed. What the man at the lunch counter does when he leaves the diner is not his business. A bad man may show up at your stationery shop to buy paper. What he does with that paper is not your business. But it’s another matter entirely if the chef or the stationer is asked to take action to support something he believes to be evil. Suppose a Kleagle from the Ku Klux Klan shows up at your bakery and wishes to order a cake with a flagrantly racist decoration—are you required to make that cake? Why? Keep the law out of it for the moment. Consider only the demands of conscience. What would we call the chef who gives in, who knows that what the Kleagle is ordering is wrong, and whose conscience tells him that to comply is evil? We call him a coward, that’s what.

The real question is not whether the Hugenins have a duty to obey their consciences, but why any lover not merely of freedom but of humanity would want to compel them to disobey. Here it’s not just that a Hugh Hefner claims a supposed right to produce pornography. He is claiming the right to make you look at it, to be a part of it, knowing full well that you believe it is evil. He wants you to be either a coward or a hypocrite. What is going on? What kinds of people want to leave the souls of their fellow human beings a twisted mess, by forcing them to violate their consciences? Who would want to make Quakers shoot to kill, not because they need the Quakers to do that, but just because they revile their pacifism and want to rub it out?

One way to blunt your own consciousness of wrongdoing is to dragoon as many people as possible into it, to compromise them, to wear down their defenses, to entice them if possible, to badger or threaten them if necessary. The homosexuals in question cannot tolerate dissent. If even one person is allowed to decline to manifest a tacit approval of sodomy, that is a punishable offense. You must be suborned or silenced. A child may not be made to endure the proximity of prayer, but he may be required, in some of our schools, to say “I am gay,” or to imagine it, regardless of his conscience or his parents’ moral directives; and if he doesn’t, he will be castigated for his intolerance.

What we see here is the imposition of a religion—the religion of the sexual revolution, as bizarre and incoherent and dehumanizing as it proves to be. The state has become the church, and hearkens to no commandments but those of its own devising.

Anthony Esolen, a contributing editor at Crisis, is a professor and writer-in-residence at Magdalen College of the Liberal Arts. Dr Esolen has authored several books, including The Politically Incorrect Guide to Western Civilization (Regnery Press, 2008), Ten Ways to Destroy the Imagination of Your Child (ISI Books, 2010) and Reflections on the Christian Life (Sophia Institute Press, 2013).

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